Last Updated September 7, 2007
Welcome to FotoFlexer! Whether you are interested in being a partner of FotoFlexer, or you are simply interested in utilizing the features of our service, we hope you enjoy your visit, and find that using our service is productive, easy and fun.
Users may submit certain material to FotoFlexer, including without limitation, photographic images, as part of your use of the Service ("Submissions").
Under these Terms, Users agree NOT to post, place or transmit any of the following material or obtain any such material using the Service:
A User's physical or electronic sharing of images constitutes permission for reprinting by the recipient. In addition, by sharing images, you grant other Users of FotoFlexer an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly display, reformat, excerpt (in whole or in part) and distribute images for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such images, and to grant and authorize sublicenses of the foregoing. This license will not expire upon removal of the content from the Site or Service. FotoFlexer will not be liable for the content of any Submission and expressly disclaims all liability relating thereto.
While FotoFlexer is not responsible for, and does not review or comment on the content of Submissions provided by FotoFlexer users, FotoFlexer reserves the right in its discretion to (i) delete, move or edit Submissions that it, in its sole discretion, deems abusive, defamatory, obscene, inappropriate, or in violation of copyright or trademark laws, or otherwise unacceptable, or (ii) take any other action that FotoFlexer deems necessary relating to use or misuse of the Service. FotoFlexer may request confirmation of the copyright or trademark ownership from the submitter. If FotoFlexer does not receive any such confirmation or if there are continued claims of copyright or trademark infringement relating to certain Submissions, FotoFlexer reserves the right to (i) suspend the shipping of an order relating to the Submission in question, and/or (ii) share the submitter's account information with governmental organizations, law enforcement authorities or other third parties. If you, as a submitter, dispute any copyright or trademark infringement claims, we will share with you the contact information of any party claiming any such infringement. In the event of any such dispute, FotoFlexer reserves the right to suspend the display, viewing or sharing of any Submissions until the issue has been resolved. Users hereby grant to FotoFlexer a non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute Submissions for the sole purpose of delivering the Service. In addition, Users warrant that all moral rights in any Submissions and uploaded materials have been waived and do hereby waiver any such moral rights.
We recommend you keep back-up copies of your Submissions on your hard drive or other personal system. The Service is not intended as a guaranteed back-up solution.
FotoFlexer is committed to protecting photographers' copyrights and expects Users of the Service to do the same. Each image submitter is required by US law to own the right to, or to obtain permission to, use any image before the image is uploaded or printed at FotoFlexer. At FotoFlexer's discretion and in appropriate circumstances, FotoFlexer may terminate the accounts of Users or prevent access to the Service by Users who infringe the intellectual property rights of others. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent as set forth below:
Name of Agent Designated to Receive Notification of Claimed Infringement: Jeremy Schiff
Full Address of Designated Agent to Which Notification Should be Sent: 1 Market Street, Spear Tower, 36th Floor, San Francisco, CA 94105
Telephone Number of Designated Agent: (818) 681-9266
Facsimile Number of Designated Agent: (415)-358-8151
E-Mail Address of Designated Agent:
To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following:
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, members who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Site and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Users can allow other people to view selected images in that User's account through FotoFlexer's online share feature. The people invited to view images through online share will be able to see the images selected for them and will not have access to a User's entire account.
Linking directly to images on FotoFlexer's servers from external sites is expressly prohibited.
We need to be able to access an account for the following reasons:
There is no fee to open a FotoFlexer account.
Users understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which Users may have access to as part of, or through use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content".
Content presented as part of the Service, including but not limited to advertisements in the Service and sponsored Content within the Service may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to FotoFlexer (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by FotoFlexer or by the owners of that Content, in a separate agreement.
FotoFlexer reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service. For some of the Service, FotoFlexer may provide tools to filter out explicit sexual content. In addition, there are commercially available Service and software to limit access to material that you may find objectionable.
Users understand and accept that by using the Service, Users may be exposed to Content that they may find offensive, indecent or objectionable and that, in this respect, you use the Service at your own risk.
Users agree that they are solely responsible for (and that FotoFlexer has no responsibility to you or to any third party for) any Content that Users create, transmit or display while using the Service and for the consequences of those actions (including any loss or damage which FotoFlexer may suffer) by doing so.
You acknowledge and agree that FotoFlexer (or FotoFlexer's licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Specifically, all of the information, content, and materials we offer are protected by copyright and other applicable laws of both the United States and foreign countries. You may not copy or distribute such material without the copyright owner's prior written consent. You may use these materials for personal, non-commercial use only, subject to the restrictions set forth in these Terms, so long as you do not modify the materials or remove any copyright or other proprietary rights notices contained in the materials.
All right, title and interest in and to the FotoFlexer site and Service is and will remain the exclusive property of FotoFlexer and its licensors. The site and Service are protected by copyright, trademark and other laws of both the United States and foreign countries. You may not copy or modify the HTML code used to generate web pages on the site. You may not use the site or Service on, or in connection with, any other website, for any purpose.
Unless you have agreed otherwise in writing with FotoFlexer, nothing in the Terms gives you a right to use any of FotoFlexer's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
You further acknowledge that the Service may contain information which is designated confidential by FotoFlexer and that you shall not disclose such information without FotoFlexer's prior written consent.
Other than the limited license set forth below, FotoFlexer acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content submitted, posted, transmitted or displayed on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with FotoFlexer, you agree that you are responsible for protecting and enforcing those rights and that FotoFlexer has no obligation to do so on your behalf.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Service.
Unless you have been expressly authorized to do so in writing by FotoFlexer, you agree that in using the Service, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
Whether you are a User or a Partner, FotoFlexer gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by FotoFlexer as part of the Service as provided to you by FotoFlexer (referred to as the "Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by FotoFlexer, in the manner permitted by the Terms. Fotoflexer has the right to revoke this license at anytime and for any reason without any prior notice.
You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by FotoFlexer, in writing.
Unless FotoFlexer has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
You may not use any FotoFlexer technology for any illegal activity whatsoever. FotoFlexer may terminate any license agreement at any time and without any prior notice, if it determines, in its sole discretion, that the license is being used for what it deems to be illegal activity.
If you are a user, you retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Service. By submitting, posting or displaying the content you give FotoFlexer a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Service.
You agree that this license includes a right for FotoFlexer to make such Content available to other companies, organizations or individuals with whom FotoFlexer has relationships for the provision of syndicated Service, and to use such Content in connection with the provision of those Service.
You understand that FotoFlexer, in performing the required technical steps to provide the Service to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, Service or media. You agree that this license shall permit FotoFlexer to take these actions.
You confirm and warrant to FotoFlexer that you have all the rights, power and authority necessary to grant the above license.
The Software which you use may automatically download and install updates from time to time from FotoFlexer. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit FotoFlexer to deliver these to you) as part of your use of the Service.
The Terms will continue to apply until terminated by either you or FotoFlexer as set out below.
If you want to terminate your legal agreement with FotoFlexer, you may do so by (a) notifying FotoFlexer in writing, at any time and (b) closing your accounts for all of the Service which you use, where FotoFlexer has made this option available to you. Your written notice should be sent to FotoFlexer's address which is set out at the beginning of these Terms.
FotoFlexer may at any time, terminate its legal agreement with you if:
Nothing in this Section shall affect FotoFlexer's rights regarding provision of Service under any other section of this agreement.
When these Terms come to an end, all of the legal rights, obligations and liabilities that you and FotoFlexer have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation.
Some of the Service are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Service, queries made through the Service or other information.
The manner, mode and extent of advertising by FotoFlexer on the Service are subject to change without specific notice to you.
In consideration for FotoFlexer granting you access to and use of the Service, you agree that FotoFlexer may place such advertising on the Service.
The Service may include hyperlinks to other web sites or content or resources. FotoFlexer may have no control over any web sites or resources which are provided by companies or persons other than FotoFlexer.
You acknowledge and agree that FotoFlexer is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
You acknowledge and agree that FotoFlexer is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
As part of FotoFlexer's sharing service, FotoFlexer may provide Users with access to and use of pages on the FotoFlexer site and the corresponding online web addresses (URLs) that, in some cases, may be chosen by the User. FotoFlexer does not guarantee the availability of a particular web address. FotoFlexer also reserves the right, at any time and for any reason, to reclaim, suspend, terminate and/or transfer any web page or address provided by FotoFlexer to a User as it deems necessary in its sole discretion and, at FotoFlexer's option, to provide Users with an alternative web page and address.
We may make third party software available to you from time to time. To access such third party software, you must first agree to the third party software provider's terms and conditions governing use of such software which agreement will be between you and the third party software provider. FotoFlexer is not a party to any such arrangement between you and a third party software provider and disclaims any liability, and provides no warranties relating to such software.
This means that we do not guarantee that any third party software you access will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses. You acknowledge sole responsibility for and assume all risk arising from your download and use of any such software.
You are responsible for compliance with all local laws, and you are required to comply with U.S. export laws and regulations when you use or export any software or materials provided through the Service. All materials, information, software and other products supplied by or through the Service are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in these Terms and as provided in FAR 12.212(a) (1995), FAR 52.227-19, FAR 52.227-14 (ALT III), DFARS 227.7202-1(a) and 227.7202-3(a) (1995) and DFARS 252.227-7013(c)(1)(ii) (OCT 1988) et seq. or their successors. Use of any of such by the Government constitutes acknowledgment of our or our suppliers' proprietary rights in them. In the event that the Terms, or any part thereof, are deemed inconsistent with the minimum rights identified in the Restricted Right provisions, the minimum rights shall prevail.
You agree to indemnify, defend and hold us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Service harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from (i) any violation of these Terms, or any activity related to access to or use of the Service (including negligent or wrongful conduct) by you or any other person accessing the Service on your behalf and/or (ii) a claim that a Submission infringes third party intellectual property rights.
Any action hereunder must be brought, if at all, within one (1) year from the accrual of the cause of action. The parties agree that these Terms and any claims hereunder shall be governed by and subject to the state and federal laws of the state of California, without regard to its conflict of law provisions, and hereby consent to jurisdiction and venue in the courts of the Northern District of California located in San Francisco, California.
THE SERVICE, CONTENT AND/OR MATERIALS AVAILABLE THROUGH FOTOFLEXER'S SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FOTOFLEXER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FOTOFLEXER MAKES NO WARRANTY THAT ITS SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT THIS SITE OR ITS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FOTOFLEXER MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH FOTOFLEXER'S SITE OR ADVERTISED THROUGH FOTOFLEXER'S SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FOTOFLEXER OR THROUGH THE SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL FOTOFLEXER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF FOTOFLEXER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, FOTOFLEXER'S SITE OR SERVICES, FROM ANY CHANGES TO THIS SITE OR ITS SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT FOTOFLEXER IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, FOTOFLEXER WITH HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE. YOU AGREE THAT THE AGGREGATE LIABILITY OF FOTOFLEXER TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICE IS LIMITED TO $100. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT FOTOFLEXER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Many of our customers are interested in submitting ideas for products and services to be used at FotoFlexer, either independent of, or in conjunction with, our internally developed concepts. We appreciate our customers' interest in improving our service; however, please note our policy on external idea submission:
If you intend to own the intellectual property rights of your ideas in any way (patent, trade secrets, copyright, trademark, etc.) please do not submit your concepts or prototype samples to FotoFlexer, Inc. or its employees.
Send a message to and describe ONLY the general application.
If we think there is opportunity to pursue your idea further, we will contact you. Please note that a legal agreement may be required by FotoFlexer in order to evaluate your concept(s).
We may assign our rights and responsibilities hereunder without notice to you. If any part of this Agreement is held to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision most closely matching the intent of the original provision and the remainder of the Terms will continue in effect.
These Terms constitute the entire agreement between you and us with respect to this Service, and supersede all other communications, written or oral, with regard to the Service. The failure of FotoFlexer to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.